Modern consumption patterns are a product of the historical development and industrialization of the United States, including increased consumer spending and demand for energy-intensive goods. These historical and social trends provide the foundation for understanding contemporary patterns of consumption of natural resources, undoubtedly a cause of global climate change and other serious adverse environmental effects.
In the near future the use of coal may be legally restricted due to concerns over the effects of its combustion on atmospheric carbon dioxide concentrations. Carbon capture and geologic sequestration offer one method to reduce carbon emissions from coal and other hydrocarbon fuel. While the federal government is providing increased funding for carbon capture and storage, congressional legislative efforts to limit carbon emissions have failed.
For a number of years, the U.S. federal tax code has imposed a tax on petroleum that finances the Oil Spill Liability Trust Fund, an earmarked fund to help cover the costs of oil spills. BP’s massive 2010 oil spill in the Gulf of Mexico provided an unprecedented test for the Trust Fund and underscored the question of who pays for the costs of oil spills. The BP spill taught important lessons about the role of the tax and the Trust Fund, and the federal regulatory regime governing the responsible parties’ liability.
Natural resources, such as clean air and water, are public resources shared by all, yet owned by no one in particular. Since public resources are not sold in a free marketplace, they have no free market value that takes into account factors such as scarcity and environmental degradation. However, if such public goods are carelessly used without any rules governing their use, such resources inevitably succumb to the “tragedy of the commons,”2 under which resources that are free or available to everyone may be ruined by abuse or overuse.
Like a tripartite juggernaut, all three branches of the U.S. federal government are actively grappling with climate change in kind: legislation from the U.S. Congress; regulation from the U.S. Environmental Protection Agency (EPA); and litigation in the judiciary all may come to bear on carbon emissions as a causal genesis of climate change. When all three branches of the federal government concurrently engage in questions of the same subject matter, interesting separation-of-powers concerns are implicated.
For those interested in the intersection of global greenhouse gas (GHG) regulation and responsible energy policy, December 23, 2010, was a day worth remembering. Over at the U.S. Environmental Protection Agency (EPA), regulators were announcing a schedule for rulemaking for new source performance standards (NSPS)1 for GHG emissions from refineries and power plants. Meanwhile, the Wall Street Journal2 ran a lead editorial reflecting upon an apparent division in the ranks among power companies.
The political opponents of regulation addressing climate change claim that the Clean Air Act (CAA) is a “fossil” neither intended nor suitable for addressing the challenges of climate change. Legal and historical analysis suggests otherwise. Both the text of the Act, as interpreted by the U.S. Supreme Court in Massachusetts v. U.S. Environmental Protection Agency (EPA), and the legislative history indicate a congressional intent to regulate emissions of pollutants that pose a risk of causing changes in worldwide climate.
On January 2, 2011, EPA’s much-anticipated prevention of significant deterioration and Title V Greenhouse Gas Tailoring Rule took effect, expanding the reach of the Clean Air Act and creating a phased-in approach to greenhouse gas regulation that initially targets the nation’s largest emitters but will gradually encompass additional sources. Numerous challenges threaten the rule’s long-term viability, including a regulatory alternative that could gain traction in the continued absence of a legislative response to the issue of climate change.
Throughout the country, divergent interests are collaborating about how they would like particular national forests to be managed. Some of these initiatives are seeking place-based legislation as a way to secure such agreements, while others use an assortment of different approaches and memoranda of understanding. What is most remarkable about these initiatives is the similarities they share, from a widespread frustration with the status quo to the search for more certainty in forest management.
The CWA, with multiple paths to its destination, is reinventing itself once more. Enacted in modern for in 1972, the next quarter century saw EPA focused on the development of technology standards for industrial and municipal point sources. In the mid-1990s, prodded forward by a stream of citizen suits, the Agency started to address nonpoint sources of pollution through water quality standards and the TMDL program. This movement stalled from 2000-2009, and the current revival raises the question whether EPA, at last, can make nonpoint and ambient-based controls effective.